Member or Not, Here We Come

There’s been a lot of words expended recently on Sarah Palin’s ties (if not membership) to the Alaska Independence Party (AIP).The Party’s website lays out an array of arguments, legal and otherwise, justifying their belief that they have been wrongly admitted into the United States.The group’s aim on their website is to have a “vote on secession,” and not secession itself, but this modest goal lies in contrast to stronger worded material on their website indicating that Alaska was never properly admitted into the union and the group’s presence at the 2006 and 2007 North American Secessionist Conventions.Maybe AIP doesn’t push secession to the forefront like they use to, but it seems that they are distancing themselves from the word “secession” more for political expediency than a change of heart.

I think it is fair to say the AIP believes Alaska’s mistreatment at the hands the United States government entitles them to an opportunity to secede.The group grounds this sentiment in international law.As AIP Chairman Lynette Clark indicated in an ABC News Interview: “‘We are a state’s rights party,’ says Clark, a self-employed goldminer. The AIP has ‘a plank that challenges the legality of the Alaskan statehood vote as illegal and in violation of United Nations charter and international law.’”

Are they right on the law?

Don’t misunderstand me; I’m not a member of the AIP and I’m not here to give their cause a legal stamp of approval.Frankly, the fact that they align themselves with the ultra-right wing Constitution Party (whose adherents include the adorable Jerome Corsi) gives me pause in writing anything that could be interpreted as an endorsement.But someone should assess their legal basis for secession, given the volume of the recent press about them.What follows are AIP’s arguments for secession and some analysis to put them in context.

Arguments & Analysis:

Taken primarily from attorney and AIP founder Joe Vogler’s own words, the AIP case for secession consists essentially of four arguments, some more legally based than others.I’ll assume that all of the AIP’s factual assertions about the Alaska vote for statehood are true.

1.Deception in the Plebiscite for Alaskan Statehood

The AIP argues that the AlaskanTerritory’s 1958 vote in favor of statehood was flawed and should be rendered invalid.Although the tally was 40000 for to 8000 against in the August 26, 1958 vote, they say that these vote totals are inflated because military personnel and their dependents were allowed to vote for statehood “without loss of their overseas status” (normally only state residents can vote on state issues).Current AIP Vice Chairman Dexter Clark recently compared this practice as being like if American troops had all went and got their purple fingers in Iraq.

The group also says that the only choices on the vote were yes and no.The AIP insists that international law must have allowed for them to have other choices, such as being a commonwealth associated with the United States or being an independent nation altogether.They say that the limited vote violates United Nations General Assembly Resolution (UNGA) 742 (1953), which says in part that a non-self governing territory can’t integrate with an existing state unless i) the opinion of the people is informed and democratic and ii) the choice to join is made freely.The AIP correctly notes that Puerto Rico was given the commonwealth and independent nation options in their last vote on statehood.The yes/no only vote leads the AIP to conclude that it is unclear whether Alaska ever really wanted to be a state.

Analysis:Alaska’s vote for statehood was flawed, but not illegal.

A.The AIP’s stated problems with the vote for statehood have their merits, and the vote certainly could have been done better.But is an unfair vote always illegal?The AIP takes a lot of terms in international law and interprets them as favoring their position.To say that the Alaskan statehood vote needed to include options for commonwealth in order to satisfy the “opinion of the population” and “freedom of choice” factors in UNGA 742 is an interpretation, not a fact.It is possible that the yes-no statehood vote was good enough; it was in fact good enough for the General Assembly, which affirmed the vote as consistent with Alaska’s right of self-determination (their right to freely choose their government) in UNGA 1469 (1959).

B.The decision to let the military vote while keeping their overseas status is suspicious, but it is not as massive an error as the AIP makes it appear.

First, the AIP is engaging in a lot of speculation.The margin of victory is so large in this case that the military vote may not have made a difference; the AIP is only assuming that it could’ve mattered.Vogler also makes an unsubstantiated claim that the military buildup in the 1950’s was “designed to insure statehood.”While the military population in Alaska did “peak” around the statehood vote, the government website on Alaska’s military history says that the personnel fluctuations in Alaska were due to evolving Soviet ICBM technology in the early Cold War.I’m willing (as always) to be persuaded that the government is lying, but Russia does border Alaska and Vogler does not offer any proof challenging the government’s position.

Second, if a military member had been living in Alaska for several years, then why not give them some say on statehood?This is not like US soldiers living in Iraq, who are an occupying force serving on tours of duty with no intention of settling there.These were permanent US military bases on US owned territory.I understand AIP’s “Alaska First!” sentiment that only real Alaskans should have participated in the vote for statehood, but the logical extension of that point is that only the Inupiat, Yupik and Aleuts (and other real native Alaskans) should have voted for statehood.If the concern is preventing a “rigged population” from voting on statehood, then why should men like Joe Vogler (a Kansas transplant to Alaska) get a vote?

C.It is worth noting that far more flawed votes by non-self governing territories have been upheld under international law.In West Irian, the UN certified a 1969 vote to join Indonesia despite the fact that the only people allowed to vote were selected by Indonesian authorities.The Falkland (aka Malvinas) Islands still supports retaining British territory status, but this support is heavily influenced by the descendants of British settlers living there.The only recent UN response to the “rigged population” in the Falklands has been to encourage negotiations between Britain and Argentina (the other country asserting a claim to the islands); the UN has never said that the Falklands have been denied their right to self-determination.More extreme still, when Goa joined India in 1961, India did not let the territory have any vote at all on their status.This action was blatantly illegal, but no UN Security Council action was taken because the Soviet Union vetoed the resolution (subscription required).

These situations make the Alaska vote seem a democratic beacon by comparison.The international legal standard for a fair vote in these situations seems both pretty minimal and selectively enforced.It is possible that all of these votes are illegal and that it is political forces wrongly keeping Goa Indian, (now) West Papua Indonesian, and Alaska American.Perhaps, but if a law is broken and no one wants to enforce it then the AIP’s legal arguments are just howling at the moon.

2.International Law on Self-Determination

Vogler cites the UN Charter and well over a dozen UN General Assembly Resolutions supporting their position that Alaska’s right to self determination has been violated (defined simply as the right to govern oneself).The relevant UN Charter provision is Article 73 on Alaska’s pre-state status as a non-self governing territory; the United States had an obligation under Article 73 to develop self government in the territory and report their progress to the UN.Countries are allowed to stop transmitting information only when self-determination has been attained and freely exercised by the territory, and the UN General Assembly says they should be the ones monitoring assertions of self-determination as per UNGA 1051 (1957).The United States’ formally ceased transmitting information on Alaska’s status in 1959, and the UN agreed that the cessation was valid in the aforementioned UNGA 1469 (1959).The AIP nevertheless argues that the corrupt vote deprived them of their right of self-determination

Analysis:AIP’s international law assertions do not create any solid legal claims.

The AIP implies that their cited array of General Assembly resolutions has some kind of binding force – it doesn’t.The General Assembly may look like the US Congress and may make resolutions that sound like laws, but these resolutions are not legal declarations.The General Assembly’s only powers granted to them by the UN Charter are to discuss issues (Article 10, 11), initiate studies (Article 13), and make recommendations (Article 14).Some resolutions are very well written and can be used to give guidance on fuzzy legal situations, but no court in the world would “enforce” a General Assembly resolution.To write, as Vogler does more than once, that a General Assembly resolution is “controlling” is to write something oxymoronic.General Assembly resolutions are very weak legal authority, and trying to make a legal claim that relies this heavily on General Assembly resolutions is a recipe for being laughed out of court.

The AIP also relies on some stronger international legal authority, the UN Charter, but it is unclear if this gets them very much.As written above, it is unclear that the non-self governing territory provision in Article 73 has been violated.Joe Vogler may think that it’s a clear case, but his UN Charter arguments lost twice when he was hauled into court in the 1980’s for illegally operating mining vehicles on national park land.The 9th Circuit’s opinion in United States v. Vogler was so dismissive of his UN Charter argument that they only spent two sentences addressing it.Furthermore, the Supreme Court said in March’s Medellin v. Texas that the UN Charter is not a self-executing treaty in United States courts, meaning that it is not an enforceable domestic law.So, not only was AIP’s UN Charter argument rejected by two different US courts in the 1980’s, the Supreme Court now has foreclosed the possibility of the AIP asserting the same argument again.

3.Illegal Subsequent Conduct by the Federal Government That Has Breached Contract for Statehood

Vogler next argues that Alaska’s admission to the union has been tainted by the subsequent conduct of the federal government.Cited injustices include the Alaskan oil export bans (lifted in 1996) and the fact that so much of Alaska continues to be protected as national park land.Vogler also criticized how Alaska had to pay claims to native peoples who were resettled as part of the oil-inspired Alaska Native Claims Settlement Act of 1971 (ANCSA; background on this act can be found here).It is unclear from Vogler’s essay if this subsequent conduct by the US government is part of a legal case for secession, but it can be addressed briefly.

Analysis:The Alaska Statehood Act is not a contract; subsequent conduct, even if unfair, does not legally void statehood.

Even if these alleged injustices amount to mistreatment by the US government, this conduct has no impact on the validity of Alaska’s statehood vote.The Alaska Statehood Act was not like some sort of contract between Alaska and the United States, where non-compliance by the US could void the deal.Rather, it was a legislative act like any other – Congress can amend or changed as Congress sees fit.The AIP can argue that this behavior deserves some political response (like the secession vote they call for), but there’s no legal claim that connects the statehood vote to the way Alaska has been subsequently treated.

4.Alaskanism

A lot of the legal arguments for secession are framed in anti-colonial language – “Alaska for Alaskans.”The Declaration of Independence is cited to on AIP’s website, along with a wealth of other treaties and other documents hurled at tyrants over the ages by people longing to rule themselves.Vogler challenges the reader, “Do we exist solely to provide raw materials for their factories and refineries? That is the purpose and intent of Colonialism!”Vogler also argues that the lands set aside for native tribes or wildlife preserves are unfair deprivations constituting “discrimination” against Alaska by the federal government.

Every time Vogler references native Alaskans in his essay it is to complain that they are being given too much by the Alaska and federal governments.For Joe Vogler to say that his Alaska was “discriminated against” because the government (under ANCSA) blocked development on 40 million acres of land for the native peoples to resettle on is ridiculous.The natives had their traditional lands taken from them for oil drilling, were forced to resettle, and he’s a victim because the land can’t be developed?!Vogler also absurdly includes granting the natives fishing and hunting preferences on their land (just “because of their living in the bush”) in the section on injustices done to Alaska following statehood.

These statements feel like they have a xenophobic undertone, reinforced by the AIP’s allegiance with the moratorium on immigration endorsing Constitution Party.Just an opinion; it is possible that Native Alaskans are wildly for and are proud members of the AIP.But I doubt it…

Conclusion:

The AIP does not have a good case under international law to secede from the United States.Even if they independently had a vote on secession and won, there is no reason to believe that a court or the UN would call it a valid exercise of self-determination.The AIP is correct that the vote for Alaska’s statehood could have been done better, but they’re legal arguments don’t get them anywhere.For them to get what they want, the AIP has to either: i) forcibly take control of their government, or ii) push to amend the US Constitution to allow for secession; a constitutional provision on secession was actually in the old Soviet Union constitution, for example.Good luck getting Sarah Palin’s help on option one, but don’t you think she’d be down for making our Constitution look a little more Communist?

Matt Halling is currently in his final year of law school at University of California, Hastings.Hate mail and love letters can be sent to [email protected].